We've talked endlessly about using a Constitutional convention to wrest the reins of government from entrenched interests and put them back in the hands of the people. Enough talk: It's time to put the theory into action.
To recap, the Constitution may be amended in two ways: by a two-thirds vote of Congress, or by a convention called by two-thirds (34) of the (50) state legislatures. All amendments to date have arisen through the first mechanism, although conservatives and libertarians increasingly are calling for state lawmakers to pursue the second. If 34 states pass convention measures, Congress must convene a convention to discuss amending the constitution. In the words of James Madison, who was instrumental to the drafting of Article V, "If two thirds of the States make application, Congress cannot refuse to call one." Even the centralizer Alexander Hamilton conceded that the wording of Article V leaves "nothing...to the discretion of Congress."
The publication of Mark Levin's The Liberty Amendments seems to have brought this simmering talk to a boil. In his book, Levin suggests several amendments: to establish term limits for members of Congress, to repeal the Seventeenth Amendment, to establish term limits for Supreme Court justices and provide a legislative override of their opinions, to limit federal taxing and spending, to restrict the federal bureaucracy, to promote free enterprise, to protect private property, to grant the states more direct power to amend the Constitution and check Congress, and to ensure that voting is open to citizens only. A non-profit called Citizens for Self-Government, run by Tea Party leader Mark Meckler, is organizing grassroots support for a convention. Lawmakers in Georgia have even come to taking votes on the matter.
Some conservatives and libertarians worry about a runaway convention, the possibility that liberal leaders in Congress will hijack the proceedings, or that amendments proposed would far surpass the scope of what state lawmakers intended. But take comfort:
First, for any amendment to take effect requires ratification by three-fourths (38) of the (50) states. The ultimate decision-making authority, then, lies with the states that called convention.
Second, the role of Congress within the convention itself is supposed to be ministerial. In fact, if we were to follow the procedures and protocols of the Founding generation, then state assemblies made up of state delegates would oversee and implement the business, dealings, and records.
Third, some scholars, such as retired constitutional law professor Robert G. Natelson, who interprets the Constitution from an originalist perspective, argue that state lawmakers can limit the scope of the Article V convention to a single issue, which could prevent imprudent overhaul of the entire Constitution. For instance, Chief Justice Roy Moore of the Supreme Court of Alabama, my boss, has urged all 50 governors to push for an Article V convention limited to one amendment prohibiting any state or federal law from defining marriage as anything besides the union of a man and a woman.
The real question, it seems to me, is which issues are worth convening over. There is a general scholarly consensus that Congress must group applications by category and then call a convention whenever a particular tally reaches the magic number of 34 states.
Everything that opponents of an Article V convention fear — a makeover of the constitution and the centralization of power — has already occurred under the current federal regime and with the validation of a Supreme Court that cares more about what its precedents say than about what the Constitution mandates. We have never held an Article V convention, so there is as much evidence that it will succeed as there is evidence that it will not succeed. Natelson, among others, has demonstrated that the Framers conceived of Article V as a vehicle for bypassing Congress, curbing the power of an oppressive central government, and enabling the states to have and to exercise concurrent power with the federal government. As Natelson puts it, "the convention for proposing amendments is nothing but a diplomatic gathering of the States to which each state sends a delegation, called a committee, and in which each state stands in a position of sovereign equality."
Opponents of an Article V convention appear to be more worried about the potential for a runaway convention than they are about the runaway federal government that has already distorted or rendered meaningless several constitutional provisions: the Commerce Clause, the Fourteenth Amendment, the Establishment Clause, the Tenth Amendment, and so forth. We can encourage our state legislatures to call for an Article V convention run by the several states that may not succeed, or we can try what we know for certain does not work: voting in the same old establishment politicians to Congress and the presidency. To me, the choice seems easy.